# Farmer v. Bailey

> District Court, W.D. Louisiana · June 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10196262

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** June 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

WUENSITTEEDR NS TDAISTTERSI DCITS TORFI LCOT UCIOSIUARNTA
LAKE CHARLES DIVISION

MISTY HOWELL FARMER CASE NO. 2:19-CV-01384

VERSUS JUDGE JAMES D. CAIN, JR.

DALE L BAILEY ET AL MAGISTRATE JUDGE LEBLANC

MEMORANDUM RULING

Before the Court is a “Motion for Summary Judgment” (Doc. 52) filed by
Defendants, former Sheriff Ricky Moses, Jeannie Irvine, Jermaine Tyler, Joe Toler and
Lisa Gearen who move for partial summary judgment pursuant Rule 56 of the Federal
Rules of Civil Procedure.
FACTUAL STATEMENT
In 2019, Misty Howell Farmer, was incarcerated as a pretrial detainee in the
Beauregard Parish Jail.1 On May 11, 2019, and on May 27, 2019, Farmer made medical
requests.2 Farmer was seen on May 15, 2019 and May 28, 2019.3 On May 28, 2019, Farmer
was admitted to Beauregard Memorial Hospital with a kidney infection.
On or about May 30, 2019, during her hospital stay, Farmer reported that she had
been sexually assaulted by Deputy Dale Bailey while he was guarding her. Deputy Bailey
was charged with 3rd degree rape and malfeasance in office. The Sheriff had a written
policy against having a male deputy guarding a female inmate without another deputy

1 Doc. 1.
2 Defendants exhibit B, Luke Gaspard Declaration ¶ 4.
present. Deputy Bailey was sent by his supervisor to guard Farmer at the hospital, without
another officer.5
Farmer’s mother, Frankie Howell, has been appointed as administratrix of the
Estates of Misty Howell Farmer.6
SUMMARY JUDGMENT STANDARD

A court should grant a motion for summary judgment when the movant shows “that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56. The party moving for summary judgment is initially
responsible for identifying portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).

The court must deny the motion for summary judgment if the movant fails to meet this
burden. Id.
If the movant makes this showing, however, the burden then shifts to the non-
moving party to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted). This
requires more than mere allegations or denials of the adverse party's pleadings. Instead, the

nonmovant must submit “significant probative evidence” in support of his claim. State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249 (citations omitted).

4 Plaintiff’s exhibit 3.
5 Id.
6 Plaintiff’s exhibit 5, Letters of Administration.
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). The court is also required to view all evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material

fact exists if a reasonable trier of fact could render a verdict for the nonmoving party.
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
LAW AND ANALYSIS

Plaintiff has named former Sheriff, Ricky Moses as a Defendant in his official
capacity under various Monell theories, including a failure to supervise, train, and provide
adequate medical care. Plaintiff also has sued Sheriff Moses under a Louisiana state law
theory of vicarious liability. Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 against
Defendants Jeannie Irvine, Jermaine Tyler, and Joe Toler in their official.
Defendants move to dismiss Plaintiff’s survival action as to Frankie Sue Howell.
Defendants also move to dismiss Plaintiff’s 42 U.S.C. § 1983 claims against all Defendants
in both their individual or official capacity, and any state law claims against former Sheriff

Moses related to hiring and supervision based on qualified immunity.
Proper Plaintiff
Plaintiff, Misty Howell Farmer, initially filed the instant lawsuit. Unfortunately, on
May 17, 2022, Ms. Farmer died intestate. On January 23, 2024, Defendants propounded
Requests for Admissions to Plaintiff’s Mother Frankie Sue Howell, which asked for

Howell to admit that: (1) Alanis T. Perkins, (2) Elijah J. Farmer, (3) Samuel Farmer, and
(4) Hannah Farmer are Farmer’s children. Howell was also asked to admit that she was
Farmer’s mother. Defendants remark that Plaintiff failed to submit responses to
Defendant’s Requests for Admissions and asks that the Court deem the admissions
admitted. Defendants then suggest that Howell is not the proper party to this matter and
requests that the lawsuit be dismissed.

The Request for Admissions that received no response admits that the four above
mentioned children are the children of Farmer, and that Howell is the mother of Farmer
and grandmother of the children.
In her Opposition, Counsel for Plaintiff states that two of Farmer’s children are
majors and two are minors.7 Plaintiff suggests that an amendment of the pleadings would
resolve this issue.8 The Court agrees.

In Plaintiff’s “Corrective Document” Plaintiff states that Misty Howell Farmer, the
grandmother of Farmer’s children has been appointed as the Administratrix of the Estate
of Misty Howell Farmer. Plaintiff also attaches Letters of Administration to establish this
fact. The Court notes that on December 29, 2022, Plaintiff filed a “First Supplemental
Civil Rights Compliant for Damages under 42 U.S.C. 1983,” which named Frankie Sue

Howell as the appointed Administratrix of the Succession of Misty Adean Howell Farmer
Clinton.9 Attached to the Amended Complaint was the “Letters of Administration”
certifying Howell’s appointment on October 27, 2022.10

7 Doc. 55, p.5.
8 Id.
9 Doc. 45.
10 Plaintiff’s exhibit a, Doc. 45-1.
Defendants argue that Howell cannot, as a Succession Representative, pursue a
survival action because under Louisiana law, a higher class of beneficiary exists which
present a defect of “standing.”
Louisiana Civil Code article 2315.1 provides that only certain classes of persons
may recover damages for injury sustained by the deceased. Indeed, “the right to pursue a

survival or wrongful death action is available to four exclusive categories of survivors”:
(1) The surviving spouse and child or children of the deceased, or either the
spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he
left no spouse or child surviving.

(3) The surviving brothers and sisters of the deceased, or any of them, if he
left no spouse, child, or parent surviving.

(4) The surviving grandfathers and grandmothers of the deceased, or any of
them, if he left no spouse, child, parent, or sibling surviving.

Fletcher v. Whittington, 2022 WL 732076 at *2 (W.D. La. Mar. 10, 2022) (quoting
Abraugh v. Altimus, 26 F. 4th 298, 302 (5th Cir. 2022 (citing La. Civ. Code Arts. 2315.1(A)
& 2315.2(A)). Louisiana’s survival action code article permits a deceased’s succession
representative to step into the metaphorical shoes of the deceased, but this may only occur
“in the absence of any class of beneficiary” as set forth above.
As explained by the Fifth Circuit in Abraugh, a plaintiff's inability to sue under
Louisiana law because of the exclusive categories set forth in the survival and wrongful
death statutes is a defect of “standing.” Abraugh, 26 F.4th 303. However, “it is a defect of
prudential standing, not Article III standing.” Id. This distinction matters, as “Article III
standing is the only kind of standing required before a federal district court can exercise
subject matter jurisdiction.” Id. Here, it appears that an Amendment of the pleadings can
resolve Defendant’s concerns, and dismissal is not warranted.
Claim for denial of medical care
Defendants argue that Plaintiff has failed to lodge any federal claims against any
party other than Defendant, Dale Bailey. Defendants move to dismiss Plaintiff’s claims of

denial of medical care.
To succeed on a pretrial detainee’s right to medical care under the Fourteenth
Amendment, a plaintiff “must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs. Thompson v. Upshur County, Texas, 245
F.3d 447, 457 (5th Cir. 2001).

To prove deliberate indifference, a plaintiff must show that a defendant “knew that
[the inmate] faced a substantial risk of serious harm and failed to take reasonable measures
to abate the risk.” Williams v. City of Yazoo, 41 F.4th 416, 424 (5th Cir. 2022). The
knowledge inquiry is subjective, and the reasonableness inquiry is objective. Id. Crucially,
deliberate indifference encompasses only the unnecessary and wanton infliction of pain
repugnant to the conscience of mankind and requires facts “clearly evincing wanton actions

on the part of the defendants.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752,
756 (5th Cir. 2001). “Deliberate indifference is an extremely high standard to meet.” Id.
Moreover, it cannot be inferred “merely from a negligent or even a grossly negligent
response to a substantial risk of serious harm. Thompson, 245 F.3d at 459 (cleaned up).
To prove a denial of medical care claim, Plaintiff must submit evidence that prison

officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly,
or engaged in any similar conduct that would clearly evince a wanton disregard for any
serious medical needs.” Domino, 239 F.3d at 756 (emphasis added).
The “failure to alleviate a significant risk that [the official] should have perceived,
but did not,” is insufficient for the purpose of showing deliberate indifference. Id., citing
Farmer, 511 U.S. at 837. Indeed, “’an inadvertent failure to provide adequate medical

care’” does not violate the Constitution. Delaughter v. Woodall, 909 F.3d 130, 136 (5th
Cir. 2018). Nor does an inmate have a constitutional right to the treatment she prefers or
the best medical treatment available. Estelle, 429 U.S. at 105-06. A “mere disagreement
with one’s medical treatment is insufficient to show deliberate indifference, as are claims
based on unsuccessful medical treatment, negligence, or medical malpractice.” Id. citing

Vardnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 2001) (per curiam).
Plaintiff alleges that Ms. Farmer sent a request for medical care on April 27, 2019,
and received a response on April 29, 2019. She alleges that she sent a second request for
medical care on May 1, 2019, and another on May 11, 2019. Ms. Farmer alleges that she
was told she would see a healthcare provider on May 15, 2019, and in the interim, she
could buy a “rub” and ibuprofen. Plaintiff alleges that the May 15, 2019, appointment did

not happen. Plaintiff alleges she made another request for medical care on May 27, 2019,
and on May 28, 2019, she was admitted to Beauregard Memorial Hospital complaining of
abdominal pain and a temperature of 102 degrees.11 Ms. Farmer was discharged on May
30, 2019.12

11 Plaintiff’s exhibit 1, Doc. 58-1.
12 Id.
Defendants have submitted the Declaration of Luke Gaspard, the Assistant Warden
employed with the Beauregard Parish Sheriff’s Office, who declares that Ms. Farmer was
booked into the Parish Jail on April 23, 2019.13 Ms. Farmer made only two written
Requests for Medical Services between the period of May 11, 2019, and May 27, 2019.14
As to the first request, Nurse Lisa Gearen responded on May 13, 2019, and advised Ms.

Farmer to purchase a muscle rub and Ibuprofen until she could be seen on May 15, 2019,
for her lower back pain complaints.15 Ms. Farmer was seen by medical staff on May 15,
2019,16 who noted that Ms. Farmer had complaints of shoulder pain, lower back pain,
insomnia and anxiety.17 On May 27, 2019, Mr. Farmer made a Request for Medical
Services wherein she complained of having a discharge and odor. She received a response
on May 28, 2019, and was sent to the Beauregard Memorial Hospital.18

Other than the May 28, 2019, admission to Beauregard Memorial Hospital and the
two requests for medical care, Plaintiff has submitted no summary judgment evidence to
support her claim for denial of proper medical care and/or that the alleged requests for
medical care were made. To adequately oppose a motion for summary judgment, a non-
moving party is required to go beyond the pleadings and show that there is a genuine issue

of material fact for trial. Brown v. PNK (Lake Charles) LLC, Civ. Action No. 2:20-cv-
1347, 2022 WL 553747 at *1 (W.D. La. Feb. 23, 2022) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 286 (1986). “To this end [she] must submit ‘significant probative

13 Defendant’s exhibit B, Declaration of Luke Gaspard, ¶ 4. Doc. 52-4; Defendant’s exhibit C, Declaration of Lisa
Gearen.
14 Id.
15 Id. ¶ ¶ 4-5 and att. exhibit B-1.
16 Id. and arr. Exhibit B-3.
17 Id. att. B-3, Doc. 52-4.
18 Id. ¶ 5(d) att. B-4, Doc. 52-4.
evidence’ in support of [her] claim.” Id. (citing State Farm Life Ins. Co. v. Gutterman, 896
F.2d 116, 118 (5th Cir. 1990).
Mere conclusory allegations are not competent summary judgment evidence and
thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,

improbable inferences, and unsupported speculation are not competent summary judgment
evidence. Id. Unsubstantiated allegations are the ground upon which Plaintiff’s opposition
is built. The party opposing summary judgment is required to identify specific evidence in
the record and to articulate the precise manner in which that evidence supports her claim.
Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Crucially, “A

court may not rely on the mere factual allegations in an unverified complaint to make
summary-judgment rulings.” Joseph on behalf of Est. of Joseph v. Bartlett, 981 F.3d 319,
334 (5th Cir. 2020).
At the summary judgment stage Plaintiff has failed to accomplish her goal to create
a genuine issue of material fact for trial as to her denial of medical care claims. The Court
will not consider Plaintiff’s allegations, or statements made in a Memorandum as fact. The

Court notes that none of the statements made by Plaintiff were supported by any summary
judgment evidence. When a nonmoving party fails to make a showing sufficient to
establish the existence of an element essential to her case and on which she will bear the
burden at trial, summary judgment must be granted. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). As such, the Court will dismiss Plaintiff’s claim for denial of medical care

as to all Defendants.
Monell Claims
“[A] local government may not be sued under § 1983 for an injury inflicted solely
by its employees or agent. Instead, it is when the execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy or custom, inflicts the injury that the government as an entity is

responsible under § 1983.” Monell v. Department of Social Services of City of New York,
436 U.S. 658, 694, 98 S.Ct. 2018 (1978).
“Official capacity suits generally represent another way of pleading an action
against an entity of which an officer is an agent.” Burge v. Parish of St. Tammany, 187
F.3d 452, 466 (5th Cir. 1999). An official capacity claim against the Sheriff would in reality,

be a claim against the local governmental entity itself. Passerrello v. Sumner, 2013 WL
4590618 at *2 (W.D. La 8/28/13) (citing Glasper v. Guzman, 2009 WL 1507568 at *6
(E.D. La. 5/27/09)). The United States Fifth Circuit Court of Appeals has explained:
In order to hold a municipality or local government unit liable under Section
1983 for the misconduct of one of its employees, a plaintiff must initially
allege that an official policy or custom was the cause in fact of the deprivation
of rights inflicted. To satisfy the cause in fact requirement, a plaintiff must
allege the custom or policy served as a moving force behind the
constitutional violation at issue, or that [her] injuries resulted from the
execution of an official policy or custom. The description of a policy or
custom and its relationship to the underlying constitutional violation,
moreover, cannot be conclusory; it must contain specific facts.

Spiller v. City of Tex. City Police Dept., 130 F.3d 162, 167 (5th Cir. 1997) (quotation
marks, brackets and citations omitted).
“A plaintiff may not infer a policy merely because harm resulted from some
interaction with a governmental entity.” Colle v. Brazos County, Tex, 981 F.2d 237, 245
(5th Cir. 1993). Rather, she must identify the policy or custom which allegedly caused the
deprivation of her constitutional rights. See, e.g., Murray v. Town of Mansura, 76
Fed.App’x 547, 549 (5th Cir. 2003) (citing Turner v. Houma Mun. Fire & Police Civil
Serv. Bd., 229 F.3d 478, 483 n. 10 (5th Cir. 2000); Treece v. Louisiana, 74 Fed.App’x 315,
316 (5th Cir. 2003), Monell, 436 U.S. at 694, 98 S.Ct. 2018, (1978); Bennett v. Pippin, 74

F.3d 578, 584 (5th Cir. 1996).
An “official policy” may be either a “policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by the municipality’s lawmaking
officers or a persistent, widespread practice … which, although not authorized by an
officially adopted and promulgated policy, is so common and well-settled as to constitute

a custom that fairly represents a municipal policy. Webster v. City of Houston, 735 F.2d
838, 842 (5th Cir. 1984) (citing Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.
1984)). “Isolated acts” generally cannot establish the existence of a custom or practice.
Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003). A custom is tantamount
official policy when it is “so common and well-settled as to constitute a custom that fairly
represents municipal policy.” Webster, 735 F.2d at 841. Where prior incidents are used to

prove a custom, they “must have occurred for so long or so frequently that the course of
conduct warrants the attribution to the governing body of knowledge that the objectionable
conduct is the expected, accepted practice…” Id. at 842. This standard requires similarity
and specificity, as “[p]rior indications cannot simply be for any and all ‘bad’ or unwise
acts, but rather must point to the specific violation in question.” Estate of Davis ex rel

McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005). A custom also
requires “sufficiently numerous prior incidents.” McConney v. City of Houston, 863 F.2d
1180, 1184 (5th Cir. 1989).
§ 1983 denial of medical care against Sheriff Moses in his official capacity
Here, Defendant, Sheriff Moses argues that Plaintiff has not identified a policy,
practice or custom which served to violate Plaintiff’s constitutional rights as to Plaintiff’s

claim of denial of medical care. There is a complete absence of summary judgment
evidence that Sheriff Moses had a policy, practice or custom that repeatedly denied medical
care to its pretrial detainees. As such, the § 1983 claims against Sheriff Moses for denial
of medical care will be dismissed.
Failure to train or supervise against Sheriff Moses in his official capacity

“[T]he failure to provide proper training may fairly be said to represent a policy for
which the [Defendants are] responsible, and for which [they] may be held liable if it
actually causes injury.” City of Canton, Ohio, v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197
(1989). An official’s culpability for a deprivation of rights is at its most tenuous where a
claim turns on a failure to train. See Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350
(2011). A municipality’s failure to train or supervise its employees must amount to

“deliberate indifference to the rights of a person with whom the [untrained employees]
come into contact. City of Canton, 489 U.S. at 388. Only then “can such a shortcoming be
properly thought of as a city ‘policy or custom’ that is actionable under Section 1983. Id.
at 389; Connick, 563 U.S. at 61. In order for liability to attach due to a claim for failure to
train, the plaintiff “must allege with specificity how a particular training program is

defective.” Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir. 2009).
Defendants argue that both Farmer and Howell failed to satisfy the basic
requirements to assert their claims for failure to supervise or train. Defendants note that
Plaintiff has failed to establish a pattern of similar constitutional violations by untrained
employees. Additionally, Plaintiff has not shown that the training program is defective.
For an official to act with deliberate indifference, “the official must both be aware

of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S 825, 837, 114
S.Ct. 1970 (1994).
Here, Plaintiffs present evidence of the BPSO’s written directive required that:
Male Correctional Officers will be accompanied by a female employee or
correctional Officer when supervising a female prisoner to ensure the privacy
of the inmate. If a female employee is not available, then two (2) male
Correctional Officers will be present.19

While this evidence may establish that the BPSO did not follow its own policy in
this one instance, it does not establish that the BPSO had a policy, custom or practice of
improperly training or supervising its employees. Nor does it establish that the BPSO was
deliberately indifferent to its prisoners. Because Plaintiff has failed to establish that Sheriff
Moses had a policy, custom or practice of failure to train or supervise, Plaintiff’s Monell
claims against Sheriff Moses will be dismissed.
Monell Claim against Jeannie Irvine, Jermaine Tyler, Joe Toler, and Lisa Gearen in their
official capacity

Defendants note that it appears that Plaintiff has alleged claims of failure to train
and/or supervise against Defendants, Irvine, Tyler, Toler and Gearen in their official

19 Plaintiff’s exhibit 3, ¶ 6. Doc. 58-3.
capacity and potentially in their individual capacity. These Defendants argue that these
claims can only be brought against a party in their official capacity. Defendants argue that
an official capacity suit can only be brought against an official acting as a policymaker.
Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743, 750 (5th Cir. 2023). The Court must look to
Louisiana state law when making the “policymaker” determination. Id.

Sheriff Moses is the final policymaker for purposes of this lawsuit, thus any claims
of failure to train and/or supervise can only be made against Sheriff Moses. Considering
that the Sheriff is the final policymaker, Plaintiff’s failure to train or supervise against
Irvine, Tyler Toler, and Gearen in their official capacity, will be dismissed.
Claims against Sheriff Moses, Jeannie Irvine, Jermaine Tyler, Joe Toler, and Lisa Gearen
in their individual capacity

Also, as to Plaintiff’s individual capacity claims against Sheriff Moses, Irvine Tyler,
Toler and Gearen, individual liability against a supervisor under § 1983 is established only
“if (1) [the supervisor] affirmatively participates in the acts that cause the constitutional
deprivation, or (2) [the supervisor] implements unconstitutional policies that causally result
in the constitutional injury.” Pena v. City of Rio Grande City, 879 F.3d 613, 620 (5th Cir.
2018) (quoting Gates v. Tex. Dep’t of Prot. & Reg. Servs., 537 F.3d 404, 435 (5th Cir.
2008)); see also Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008) (citation omitted).
Plaintiff has not alleged that Sheriff Moses, Irvine, Tyler, Toler, or Gearen were

supervisors or personally involved in the facts of this case as to the alleged actions of Dale
Bailey. Furthermore, Plaintiff has not alleged how these Defendants violated any of
Farmer’s constitutional rights that amounted to deliberate indifference. See Thompson v.
Steele, 709 F.2d 381, 382 (5th Cir. 1983). Finally, Plaintiff has failed to show that any of
these Defendants were aware of facts from which the inference could be drawn that a
substantial risk of harm existed, and that Defendants actually drew that inference. See Dyer
v. Houston, 964 F.3d 374, 380 (5th Cir. 2015). The Court agrees that Plaintiff’s claims
against Sheriff Moses, Irvine, Tyler, Toler and Gearen, in their individual capacity for the
actions of Defendant Dale Bailey can only be brought against a party in their official

capacity—Sheriff Moses.
QUALIFIED IMMUNITY
A state official can be sued in his individual capacity and held personally liable
under § 1983 if the plaintiff can show the official, acting under state law, caused the
deprivation of a federal right. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 361-62

(1991). The Plaintiff must allege specific acts giving rise to a constitutional violation.”
Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002).
Government officials may invoke qualified immunity, which shields government
officials performing discretionary functions from liability for civil damages, insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. Club Retro, LLC v. Hilton, 568 F.3d 181, 194 (5th

Cir. 2009). The Supreme Court has emphasized that qualified immunity functions as
immunity from suit rather than a mere defense to liability. Pearson v. Callahan, 555 U.S.
223, 237, 129 S.Ct. 808, 818, (2009).
At the summary judgment stage of a § 1983 action:
A defendant asserting immunity is not required to establish the defense
beyond peradventure, as he would have to do for other affirmative defenses.
“The moving party is not required to put forth evidence to meet its summary
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the [movant] asserts this affirmative defense, the burden shifts to the plaintiff
to rebut it.”

Cousin v. Small, 325 F.3d 627, 632 (5th Cir. 2003) (footnote omitted) (cleaned up).
“[T]he qualified immunity standard ‘gives ample room for mistaken judgments’ by
protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”
Arledge v. Sherrill, 738 So.2d 1215, 1220, (La. App. 2 Cir. 8/18/99) (citing Malley v.
Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98; Mendenhall v. Riser, 213 F.3d
226, 230 (5th Cir. 2000). “This means that even law enforcement officials who reasonably
but mistakenly commit a constitutional violation are entitled to immunity.” Bazan ex rel.
v. Hidalgo County, 246 F.3d 481, 488 (5th Cir. 2001) (quoting Glenn v. City of Tyler, 242
F.3d. 307, 312 (5th Cir. 2001). Even in those instances where law enforcement officers
reasonably but mistakenly conclude that probable cause to make an arrest is present, they
should not be held personally liable. Breaux v. Jefferson Davis Sheriff’s Dept., 689 So.2d

615, 617, (La. App. 3 Cir. 2/5/97) (citing Anderson v. Creighton, 483 U.S. 635, 107 S.Ct.
3034, (1982)). “The inquiry is whether the totality of the circumstances in the case sub
judice justified the actions of the [defendant].” Breaux, supra. Further, facts that an officer
learns after the fact are not relevant, regardless of whether they would support the granting
of qualified immunity or denying it. Hernandez v. Mesa, 582 U.S. 548, 137 S.Ct. 2003,

2007, (2017) (per curiam).
Indeed, a law enforcement officer’s “actions must be judged in light of the
circumstances that confronted him, without the benefit of hindsight.” Brown v. Callahan,
623 F.3d 249, 253 (5th Cir. 2010). Once the government official asserts qualified
immunity, the burden shifts to the plaintiff to negate the defense. Collier v. Montgomery,
569 F.3d. 214, 217 (5th Cir. 2009). To overcome a claim of qualified immunity, a plaintiff
must demonstrate: “1) that the official violated a statutory or constitutional right; and 2)
that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v.
al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080 (2011); Club Retro, LLC, 568 F.3d at

194. Per the Fifth Circuit, a constitutional right is “clearly established” when the contours
of the right are “sufficiently clear that a reasonable official would understand that what he
is doing violates that right.” Thompson v. Upshur County, TX, 245 F.3d 447, 457 (5th Cir.
2001) (quoting Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, (1987)). A
defendant’s actions “are held to be objectively reasonable unless all reasonable officials in

the defendant’s circumstances would have then known that the defendant’s conduct
violated the United States Constitution, or the federal statute as alleged by the plaintiff.”
Thompson, 245 F.3d at 457 (citing Anderson, 483 U.S. 635, 107 S.Ct. at 3040; Malley, 106
S.Ct. at 1096; Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997) (emphasis in original).
Qualified immunity as to claim for denial of medical care
Defendants assert that Plaintiff has made claims against Gearen in her individual

capacity, and possibly against Sheriff Moses, Irvine, Tyler, and Toler for denial of medical
care. These Defendants argue that to the extent that Plaintiff has asserted claims against
them in their individual capacities, they are entitled to qualified immunity.
Even though the Court has determined the Plaintiff’s claim for denial of medical
care is to be dismissed, the Court further finds that Sheriff Moses, Jeannie Irvine, Jermaine

Tyler, and Joe Toler are entitled to qualified immunity as to the alleged denial of medical
care. After the reviewing the relevant facts and evidence submitted by the parties, Plaintiff
has failed to show that any of these Defendants individually violated Plaintiff’s
constitutionally protected rights as to her alleged claim for denial of medical care.
Failure to train and supervise against Sheriff Moses, Irvine, Tyler, Toler and Gearen, in
their individual capacity

Plaintiff alleges that Defendants Sheriff Moses, Irvine, Tyler, Toler and Gearen
failed to train and/or supervise unidentified employees of the BPSO.20 As noted by these
Defendants, supervisory officials are not liable under § 1983 for the actions of subordinates
under any theory of vicarious liability. Turner v. Lieutenant Driver, 848 F.3d 678, 695 (5th
Cir. 2017); Oliver v Scott, 276 F.3d 736, 742 (5th Cir. 2002) (“Section 1983 does not create
supervisory or respondeat superior liability.”). And as noted above, individual liability
against a supervisor under § 1983 requires affirmative participation.
In the absence of personal participation, a § 1983 plaintiff must demonstrate “(1)
the supervisor failed to supervise or train a subordinate official; (2) a causal link exists

between the failure to train or supervise and the violation of the plaintiff’s rights; and (3)
the failure to train or supervise amounts to deliberate indifference.” Mesa v. Prejean, 593
F.3d 264, 274 (5th Cir. 2008); Smith v. Packnett, 339 Fed.App’x 389, 393 (5th Cir. 2009).
Deliberate indifference entails a “conscious choice to endanger constitutional rights.” Id.
(cleaned up). The Fifth Circuit has emphasized that:

deliberate indifference is a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.
To establish that a state actor disregarded a known or obvious consequence
of his actions, there must be actual or constructive notice that a particular
omission in their training program causes . . . employees to violate citizens’
constitutional rights and the actor nevertheless choose[s] to retain that

20 Doc. 1, ¶ 22.
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because [w]ithout notice that a course of training is deficient in a particular
respect, decisionmakers can hardly be said to have deliberately chosen a
training program that will cause violations of constitutional rights.

Porter v. Epps, 659 F.3d 440, 446-47 (5th Cir. 2011), (internal quotation marks and
citations omitted); Mesa, supra (deliberate indifference generally requires more than a
single instance of lack of training or supervision that results in a constitutional violation).
As with Plaintiff’s claims for denial of medical care, Plaintiff has failed to show that
any of these Defendants individually violated Plaintiff’s constitutionally protected rights
as to her alleged claims of failure to train and/or supervise. Plaintiff has failed to establish
the supervisory capacity of any of the Defendants regarding Bailey or Gearen.
Significantly, Plaintiff has failed to show that Defendants had actual or constructive notice
of a particular defect in a training program, or a pattern of similar constitutional violations
by untrained employees to establish that they were deliberately indifferent. Finally,
Plaintiff fails to establish the personal involvement of any of these Defendants. See
Thompson v. Steel, 709 F.2d 381, 382 (5th Cir. 1983). The absence of such evidence is
fatal to Plaintiff’s claims. As such, Plaintiff’s claims against Sheriff Moses, Irvine, Tyler,

Toler, and Gearen in their individual capacity for failure to train and/or supervise fail.
Louisiana state law claims
The Court has found that Plaintiff’s 42 U.S.C. § 1983 claims, of which we have
original jurisdiction under 28 U.S.C. § 1331 and 1343, should be dismissed leaving only
Plaintiff’s state law claims. Plaintiff’s state law claims are so related to the claims over

which this Court has original jurisdiction that they form part of the same case or
controversy. Despite finding that Plaintiff’s federal claims should be dismissed, this Court
may still maintain supplemental jurisdiction over the state law claims. 28 U.S.C. § 1367
(c)(3) states that the “district courts may decline to exercise supplemental jurisdiction over
a claim if the district court has dismissed all claims over which it has original jurisdiction.”
The court for the Eastern District of Louisiana has said, “Section 1367(c)(3) specifically

grants district courts the discretion to retain or decline supplemental jurisdiction once it has
dismissed all claims over which it has original jurisdiction.” Lewis v. Jefferson Par. Hosp.
Serv. Dist. No. 2, 956 F.Supp.2d 722, 735 (E.D. La. 2013), aff'd, 562 Fed.App’x. 209 (5th
Cir.2014).
In determining whether to exercise this discretion a court should look to values of

judicial economy, convenience, fairness, and comity. No one factor is dispositive.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619 (1988). This case
has been pending before this Court for over four years and to decline to exercise jurisdiction
now would be a waste of the time and monies that have already been expended by both the
Court and the litigants in this matter. Declining to exercise jurisdiction and thus dismissing
the case would also result in Plaintiff’s inability to bring suit in state court as the claims

would have prescribed. It could not be said that this would be in the interest of fairness or
comity because a serious wrong has occurred here. Determination of whether this wrong
can be attributed to the Defendants has yet to be decided but for this Court to decline to
retain jurisdiction before this determination is made would be unjust. Considering these
factors this Court chooses to exercise the power to maintain supplemental jurisdiction at

its discretion.
Plaintiff has asserted a claim for negligent hiring and negligent supervision against
Defendants under Louisiana state law. In Louisiana, the Sheriff is considered the employer
of his deputies. See James v. Duplantis, 2021 WL 727547 at *1 (La. App. 1 Cir.
2/25/2021). Under Louisiana law, the definition of a “political subdivision” includes
“sheriff.” Louisiana Revised Statute. § 13:5102(B)(1). Consequently, any state law claims

for negligent hiring and negligent supervision against Defendants Irvine, Tyler, Toler, and
Gearen will be dismissed because the Sheriff is the only proper party to such claims.
Sheriff Moses argues that he is entitled to qualified immunity under Louisiana
Revised Statute 9:2798.1. Under LSA-R.S. 9:2798.1 political subdivisions and their
employees are immune from suit when the allegations of a lawsuit are based on “the

exercise or performance or the failure to exercise or perform their policymaking or
discretionary acts when such acts are within the course and scope of their lawful powers
and duties.”
A sheriff’s decision to hire, train, supervise, and retain officers are part of his
discretionary power. Curran v. Aleshire, 67 F.Supp.3d 741, 763-64 (E.D. La. 2014).
Louisiana Revised Statute 9:2798.1, provides in pertinent part:

Liability shall not be imposed on public entities or their officers or employees
based upon the exercise or performance or the failure to exercise or perform
their policymaking or discretionary acts are within the course and scope of
their lawful powers and duties.

Gomez v. City of New Orleans, is instructive as to exceptions to the Sheriff’s affirmative
defense of immunity under the state statute:
[I]mmunity does not apply to “(1) [t]o acts or omissions which are not
reasonably related to the legitimate governmental objective for which the
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outrageous, reckless, or flagrant misconduct. Louisiana Revised Statute
9:2798.1(C). Louisiana courts have devised a two-step inquiry for
determining whether the statute’s policymaking or discretionary acts
immunity applies to a given set of facts. First, a court must look to whether
a statute, policy, or regulation required the government employee to follow
the particular course of conduct as issue. Aucoin v. Larpenter, 324 So.3d
626, 637 (La.App. 2021). If so, then the actor omission did not involve
discretion and discretion is the kind that is shielded by the statutory
immunity, that is, discretion grounded in social, economic of political policy.
Id. at 637-38. See also Gregor v. Argenot Greeat Cent. Inc. Co., 851 so.2d
959, 968 (La. 2003) (same); Dominique v. St. Tammany Parish, 313 So.3d
397, 315 (La. App. 2020) (same) Governmental actions unrelated to public
policy considerations are commonly referred to as “operational,” as opposed
to discretionary, and thus do not implicate discretionary acts immunity under
the statute. See, e.gl, Aucoin, 324 So.3d at 638 (“The immunity statute does
not protect operational governmental decisions, but only confers immunity
for discretionary decisions based on social, economic, or political
concerns.”); Dominique, 313 So.3d at 315 (same); Sauceberry v. Webre,
2017 WL 1788096, at *4 (La. App. May 5, 2017) (same); Gregor, 851 So.2d
at 968 (holding that governmental action at issue was “operational
negligence” where “the government act[ed] negligently for reasons unrelated
to public policy consideration”).

2023 WL 4351230, *3 (E.D. La. July 5, 2023). Discretionary immunity under La. R.S.
9:2798.1 is an affirmative defense, which requires that the party raising it bears the initial
burden of demonstrating its applicability. See Dominique, 313 So.3d at 314. If the
defendant establishes entitlement to immunity, the burden then shifts to plaintiff to show
conduct that would except the defendant from liability. Id. “Immunity statutes are strictly
construed against the party claiming immunity. Id.
The Sheriff argues that he is entitled to immunity for Plaintiff’s claims of negligent
hiring or supervision under Louisiana law. However, “when the government acts
negligently for reasons unrelated to public policy considerations, it is liable to those it
injures.” Aucoin, 324 So.3d at 637. “[O]nce a discretionary decision is made, the
government entity is not protected from liability for conduct in carrying out the
discretionary act.” Populis v. State Dep’t of Transp. & Dev., 222 So.3d 975, 981 (La. App.
2017) (quoting Banks v. Par. Of Jefferson, 108 So.3d 1208, 1214 (La. App. 2013).
Although a public entity might enjoy immunity from liability for harm arising out of its
discretionary hiring, retention, and supervision decisions, see Smith v. Lafayette Parish

Sheriff’s Dep., 874 so.2d 863 (La.App. 3 Cir. 4/21/04), La. R.S. 9:2798.1 does not shield a
governmental actor when it implements such decisions in a negligent fashion.
Here, Plaintiff has submitted summary judgment evidence that creates a genuine
issue of material fact for trial that the Sheriff was negligent in hiring Dale Bailey. Plaintiff
relies on a liability screening of Bailey dated May 8, 2019, by Matrix Incorporated.21

Despite that the overall summary of the liability screening finds that Bailey is in the
“Average Range,”22 details of the liability screening reveal that Bailey;
(1) has a history of a psychological disorder that required treatment ...
and a fitness for duty evaluation should be initiated;

(2) was previously diagnosed and treated for a chemical dependency or
abuse problem (e.g., alcohol, narcotics, etc.);

(3) was previously demoted and an investigation in this issue is indicated;

(4) reported prior illicit drug use;

(5) reported mental health treatment within the past six month requiring
psychiatric clearance by the treating doctor/therapist for determining the
candidate’s mental status and stability;

(6) revealed a history of learning difficulties indicating a need for further
attention and formal testing;

21 Plaintiff’s exhibit (not identified), Doc. 55-1.
22 Id.
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prescribing physician;

(8) endorses a medical condition that may impact the job requirements of
a law enforcement officer requiring medical clearance.23

Additionally, Plaintiff has provided the BPSO’s policy, which expressly states that
a “[m]ale Correctional Officer will be accompanied by a female employee or Correctional
Officer when supervising a female prisoner to ensure the privacy of the inmate. If a female
employee is not available, then two (2) male Correctional Officers will be present.”24
As such, the Court finds that the Sheriff’s decision to hire Bailey, and to violate his
own policy as to the procedure to accompany a female inmate when supervising them are
operational decisions, not policy or rule-making decisions. As such, Plaintiff has provided
sufficient summary judgment evidence to create a genuine issue of material fact for trial
that the Sheriff acted negligently for reasons unrelated to public policy considerations.
Consequently, the Sheriff is not entitled to judgment as a matter of law and the motion for
summary judgment as to Plaintiff’s state law negligent hiring and supervising claims will
be denied.
CONCLUSION
For the reasons explained herein, the Court will grant the Defendants, Sheriff
Rickey Moses, Jeannie Irvine, Jermaine Tyler, Joe Toler and Lisa Gearen’s Motion in its

entirety as to its federal claims in both Defendants’ individual and official capacity and
Plaintiff’s state law claims against Defendants Jeannie Irvine, Jermaine Tyler, Joe Toler

23 Id.
24 Plaintiff’s exhibit 3, Doc. 58-3.
and Lisa Gearen. However, the Sheriff is not entitled to judgment as a matter of law
concerning the motion for summary judgment as to Plaintiffs state law negligent hiring
and supervising claims. To that end, this portion of Defendants’ motion will be denied.
The Court will also permit Plaintiff to amend its complaint within 30 days to
substitute the proper Plaintiff as explained hereinabove. Finally, considering the
approaching June 25, 2024, pretrial conference and July 22, 2024, jury trial date, the Court
will continue the trial and pretrial conference and refer the matter to the Magistrate Judge
for a new trial scheduling conference.
THUS DONE AND SIGNED in Chambers on this 13th day of June, 2024.
□□
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10196262. Public record. Not legal advice.